Switch to ADA Accessible Website
Orlando Criminal Lawyer

Can a Refusal to Voluntarily Provide DNA to Police be Used Against You in Court?

In 2009, Florida joined a growing number of states in requiring police to take a DNA sample from everyone charged with a felony in the state. This DNA information is to be kept in a statewide database accessible to federal, state, and local law enforcement authorities to aid in criminal investigations and help identify missing persons.  Before the DNA collection law was passed, police could take a DNA sample without a warrant only after a felony conviction or certain specified misdemeanor convictions.  Now, DNA is to be gathered (typically by mouth swab) when an individual charged with a felony is booked into a correctional or juvenile facility.

But what if the police ask you to provide a DNA sample before you are arrested, during an investigation?   If you refuse, can your refusal be used as evidence against you at trial if you are eventually charged with a crime?

The law is clear that if you refuse to answer questions after being advised of your right to remain silent your silence cannot be used against you.  And the Florida Supreme Court recently ruled that, under the state constitution, declining to speak to police before having been read your rights also cannot be used against you at trial as evidence of consciousness of guilt.  But in another Florida case, prosecutors attempted to use a defendant’s refusal to give DNA evidence before being charged with a crime to prove his guilt at trial.

The victim in the case had lived with the defendant until shortly before her murder.  Police questioned the defendant and asked whether he would voluntarily give a DNA swab so that they could compare it to DNA found in the victim’s new apartment. Defendant asked police what would happen if he said no, and an officer responded, “It is your right.”  Defendant thereafter refused to provide a swab. After he was ultimately arrested for second-degree murder, he was forced to give a DNA sample, but his DNA was not found to be present in the victim’s apartment.

At trial, prosecutors presented evidence of the defendant’s refusal to submit to DNA testing pre-arrest, arguing that it proved his consciousness of guilt.  The defendant was convicted at trial.

On appeal, the District Court of Appeal for Florida’s Fourth District ruled that the trial court had improperly allowed defendant’s refusal to submit to DNA testing to be used in evidence.  The court based its decision primarily on the fact that defendant had been told that he had a “right” to refuse the test, and had therefore been given the impression that he would suffer no negative consequences if he did so. Other courts have reached similar conclusions.  Consequently, it would appear that refusing to take a DNA test pre-arrest and in the absence of a warrant cannot be used against an individual at trial, at least where he has not been warned of any adverse consequences.

Contact an Orlando Criminal Defense Lawyer

If you have been charged with a crime, you need a knowledgeable criminal defense lawyer on your side.  The skilled defense lawyers of The Baez Law Firm can help protect your rights and provide an innovative, aggressive defense to the charges against you.  We have successfully represented clients in Orlando, Miami, Tampa, and throughout Florida.  Contact us for a consultation about your case today.

  • Facebook
  • Twitter
  • LinkedIn

Miami Office

1200 Brickell Avenue, Suite 1410
Miami, FL 33131
Office: 305-999-5100
Fax: 305-999-5111

Orlando Office

250 N Orange Ave, Suite 750
Orlando, FL 32801
Office: 407-705-2626
Fax: 407-705-2625

Email Us

Fields Marked * Are required

DISCLAIMER: Completing and submitting this form or otherwise merely contacting The Baez Law Firm or any individual at the firm will not establish an attorney/client relationship. Our firm cannot represent you until we determine that there would be no conflict of interest and that we are otherwise able to accept representation of your case. Please do not send any information or documents until a formal attorney/client relationship has been established through an interview with an attorney and you have been given authorization in the form of an engagement letter with The Baez Law Firm. Any information or documents sent via this form or otherwise prior to your receipt of an engagement letter will not be treated as confidences, secrets, or protected information of any nature. Submitting information regarding your potential case will not bar The Baez Law Firm from representing or continuing to represent a person or entity whose interest are adverse to your in condition with your case.

protected by reCAPTCHA Privacy - Terms
Please review the highlighted fields. They are required.
DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
MileMark Media - Practice Growth Solutions

© 2015 - 2024 Baez Law Firm. All rights reserved.
This law firm website and legal marketing are managed by MileMark Media.

Contact Form Tab Contact Form Tab